Gujarat High Court
Bharatkumar Kantilal Panchal vs State Of Gujarat on 31 March, 2022
Bench: Biren Vaishnav
C/SCA/4510/2021 JUDGMENT DATED: 31/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4510 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHARATKUMAR KANTILAL PANCHAL
Versus
STATE OF GUJARAT
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Appearance:
MR YOGEN N PANDYA(5766) for the Petitioner(s) No. 1
MR.KRUTIK PARIKH, AGP for the Respondent(s) No. 1
for the Respondent(s) No. 2,4
SERVED BY RPAD (N) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 31/03/2022
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Krutik Parikh
learned AGP waives service of notice of Rule on
behalf of the respondent State.
2. With the consent of learned advocates for the
C/SCA/4510/2021 JUDGMENT DATED: 31/03/2022
respective parties, the petition is taken up for final
hearing.
3. By way of this petition under Article 226 of the
Constitution of India, the petitioner has challenged
the order of termination dated 16.02.2021. The
petitioner was appointed as Deputy Executive
Engineer with an outsourcing agency.
4. The short argument of Mr.Yogen Pandya learned
counsel for the petitioner is that the order of
termination is based on certain misconduct as is
evident from the order of termination dated
16.02.2021. He would therefore submit that such an
order without departmental proceedings is bad in
view of the decision of the Division Bench of this
Court dated 24.07.2020 rendered in Letters Patent
Appeal No.1596 of 2019 in case of State of Gujarat
v. Chetan Jayantilal Rajgor.
5. Mr.Krutik Parikh learned AGP relying on the
affidavit in reply would vehemently argue that the
stand of the petitioner that the order of termination
C/SCA/4510/2021 JUDGMENT DATED: 31/03/2022
is bad on account of not following the principles of
natural justice is misconceived.
6. Apart from submitting that the petitioner had no
right to be continued in appointment on the ground
that he was appointed through the outsourcing
agency, Shri Parikh would invite the attention of the
Court to the communications dated 22.11.2019 and
06.12.2019, by which, 9 lapses were highlighted,
which the petitioner had committed, based on which,
the petitioner's response was invited. Special
emphasis has been made by the learned AGP on the
tabular form annexed to these communications, by
which, the attention of the petitioner was drawn to
the lapses that the petitioner had committed in
discharge of his duties. With each point, the
petitioner was asked to respond to and the superior
officer viz. Executive Engineer had noted the
disagreement finding that the lapses which the
petitioner had undertaken did not warrant
acceptance. This, in the submission of the learned
AGP, was sufficient compliance of the principles of
C/SCA/4510/2021 JUDGMENT DATED: 31/03/2022
natural justice inasmuch as, a charge-sheet was
issued, the petitioner was invited to respond to the 9
points set out in the document. The petitioner was
given an opportunity to explain, which the petitioner
did and based on such explanation tendered by him,
after affording an opportunity of hearing, the order
of termination was passed.
7. Apart from the stand of the learned counsel for the
petitioner that once the State had undertaken to
follow an appropriate procedure before terminating
his services, by an order in a petition filed by the
petitioner claiming regularization, what is evident
from reading the order of termination dated
16.02.2021, together with the reply so filed by the
department that no full scale departmental
proceedings have been initiated against the
petitioner and on that ground alone, along with the
decision of this Court in case of Chetan Jayantilal
Rajgor (supra) which has extensively considered the
law especially in paragraph no.11, which reads as
under, the impugned order deserves to be set aside.
C/SCA/4510/2021 JUDGMENT DATED: 31/03/2022
"11. From the overall material on record and in
consideration of aforesaid observations, we see no
distinguishable material to take a different view
or deviate from the same. Since almost in similar
issue, the proposition is to the effect that
whenever any charge is levelled and action is
found to be stigmatic, a full-scale departmental
inquiry deserves to be undertaken irrespective of
whether the delinquent was a regular employee
or contractual employee on a fixed salary. As a
result of this, we are of the considered opinion
that since undisputedly by a brief procedure, an
action is initiated against the respondents herein
while dismissing their services, said action itself
is found to be not on the touchstone of aforesaid
proposition of law. As a result of this, no error is
committed by the learned Single Judge. Having
perused these material, we are not satisfied with
the submissions made by learned counsel for the
appellants in both these appeals."
8. Having considered the decisions and the question of
law that the courts have decided, there is no reason
therefore not to agree with the submissions of
learned counsel for the petitioner inasmuch as the
order that has been passed terminating the services
of the petitioner could not have been so passed on
the allegation of misconduct without holding full
scale inquiry as laid down by the decisions referred
to herein above.
9. Accordingly, the order impugned dated 16.02.2021
passed by the respondent authority is quashed and
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set aside. The petitioner is ordered to be reinstated
with all consequential benefits on the same terms
and conditions. Accordingly, while quashing the
order impugned, the respondents are directed to
reinstate the petitioner on his original post. In other
words, since the order of termination is set aside,
the respondents are directed to take back the
petitioner in service on his original post with
continuity of service for the interregnum as well as
consequential benefits as if the order of termination
was not passed. Reinstatement of the petitioner
shall be up to the original tenure of engagement as
per the order of appointment. The monetary
benefits shall be paid to the petitioner within a
period of ten weeks. The respondents are however
not precluded from proceeding against the
petitioner in accordance with law. Petition is
accordingly allowed. Rule is made absolute. No
costs.
(BIREN VAISHNAV, J)
ANKIT SHAH
